LCP4801
Summarised Study
Notes
, 1
INTERNATIONAL LAW
THE LEGAL NATURE OF PUBLIC INTERNATIONAL LAW (PIL)
CHAPTER 1:
Theories of public International law:
Natural law:
De Groot:
The idea of law is that it universal, it isn’t something which is
made but it is discovered – it comes from the idea of god, nature
etc
Man made law must be done according the natural law = which
is the idea that a pre political set of rules must be established in
order to guide human laws
Law and morality aren’t separated = the state has a moral
function
This law is binding on both the state and the individual = state
isn’t above the law.
Such law applies automatically and doesn’t require consent.
This theory uses reason and allows the law to be applied in a flexible
way, in that it can be adapted to changing circumstances.
TODAY: it has an influence on Human Rights
Examples of the use of natural law in International law:
One of the sources of international law = GENERAL PRINCIPLES
OF LAW: these are used by international tribunals where there
are no rules of treaty or custom, they allow the court to look at
common principles found in a municipal system to fill in the
gaps in international law = don’t have consensus as a basis =
similar to the use of S39 in SA domestic courts
Ius cogens – which is an obligatory rule from which no deviation
is allowed and which is binding on states, even if they don’t
consent
Erga omnes: is an obligation which a state owes to the
international community as a whole = all states have an interest
, 2
Positivism:
Van Bynkershoek:
This is the idea that law is determined by the state = the focus
is on positive man made rules
The state creates international law by CONSENT = they are
bound by the laws to which they have consented.
There is a complete separation between law and morals
E.g. if a country persistently object in the development of an
international custom they are NOT bound – based on consent
The problem with this is that the state isn’t bound by any higher law =
no moral constitution = they separate law and morals
This theory was used as the basis for nazi Germany and could be said
for apartheid SA = Dugard blamed positivism for the mechanical
interpretation of laws by apartheid judges = stated that judges hid their
racist beliefs behind the formality of the law.
This theory provides clear guideline on what the law is.
In terms of both custom and treaty = a state is only bound if they
consent.
With a treaty one of the requirements is consensus between the
parties – agreement which creates rights and duties and is governed
by international law.
, 3
Sources of international law:
A38 of the ICJ:
1. International conventions = treaty
2. International custom
3. General principles of law recognized by civilized nations
4. Judicial decisions and teachings
General principles of law: aren’t found in the basis of consent but in
some higher order = natural law
= Unjust enrichment
= Estoppel
Judicial decisions: subsidiary way to determine the law = they can’t
be used to create international legal rules BUT can be used to
ascertain what the law is.
Soft law: non-binding GA resolutions and the opinion of writers
Useful in the interpretation and development of hard law.
Summarised Study
Notes
, 1
INTERNATIONAL LAW
THE LEGAL NATURE OF PUBLIC INTERNATIONAL LAW (PIL)
CHAPTER 1:
Theories of public International law:
Natural law:
De Groot:
The idea of law is that it universal, it isn’t something which is
made but it is discovered – it comes from the idea of god, nature
etc
Man made law must be done according the natural law = which
is the idea that a pre political set of rules must be established in
order to guide human laws
Law and morality aren’t separated = the state has a moral
function
This law is binding on both the state and the individual = state
isn’t above the law.
Such law applies automatically and doesn’t require consent.
This theory uses reason and allows the law to be applied in a flexible
way, in that it can be adapted to changing circumstances.
TODAY: it has an influence on Human Rights
Examples of the use of natural law in International law:
One of the sources of international law = GENERAL PRINCIPLES
OF LAW: these are used by international tribunals where there
are no rules of treaty or custom, they allow the court to look at
common principles found in a municipal system to fill in the
gaps in international law = don’t have consensus as a basis =
similar to the use of S39 in SA domestic courts
Ius cogens – which is an obligatory rule from which no deviation
is allowed and which is binding on states, even if they don’t
consent
Erga omnes: is an obligation which a state owes to the
international community as a whole = all states have an interest
, 2
Positivism:
Van Bynkershoek:
This is the idea that law is determined by the state = the focus
is on positive man made rules
The state creates international law by CONSENT = they are
bound by the laws to which they have consented.
There is a complete separation between law and morals
E.g. if a country persistently object in the development of an
international custom they are NOT bound – based on consent
The problem with this is that the state isn’t bound by any higher law =
no moral constitution = they separate law and morals
This theory was used as the basis for nazi Germany and could be said
for apartheid SA = Dugard blamed positivism for the mechanical
interpretation of laws by apartheid judges = stated that judges hid their
racist beliefs behind the formality of the law.
This theory provides clear guideline on what the law is.
In terms of both custom and treaty = a state is only bound if they
consent.
With a treaty one of the requirements is consensus between the
parties – agreement which creates rights and duties and is governed
by international law.
, 3
Sources of international law:
A38 of the ICJ:
1. International conventions = treaty
2. International custom
3. General principles of law recognized by civilized nations
4. Judicial decisions and teachings
General principles of law: aren’t found in the basis of consent but in
some higher order = natural law
= Unjust enrichment
= Estoppel
Judicial decisions: subsidiary way to determine the law = they can’t
be used to create international legal rules BUT can be used to
ascertain what the law is.
Soft law: non-binding GA resolutions and the opinion of writers
Useful in the interpretation and development of hard law.
